Watching Workers: Where's The Line?

Counting keystrokes might be called for in a data entry context. But tracing the location of a company-issued smartphone during a worker's off-hours isn't going to fly.

Employers may be within their rights to monitor workers, but those rights have limits and repercussions. Employers often find that watching workers is necessary, but they need to watch their step as they do so.

The issue surfaced at Harvard University recently after revelations that administrators searched 16 faculty email accounts last fall to find the source of leaks to the media about a prior cheating scandal.

Harvard sociology professor Mary C. Waters told The New York Times, "I think what the administration did was creepy," she reportedly said, adding, "this action violates the trust I once had that Harvard would never do such a thing."

There's something charmingly naive about Prof. Walters' indignation, given that computers are instruments of self-surveillance and that those with the power to search through other people's data have shown little willingness to deny themselves that capability.

Cue Claude Rains as Captain Renault in Casablanca: "I'm shocked -- shocked -- to find that surveillance is going on in here."

In the context of social media, monitoring isn't yet the norm. Gartner last year said that fewer than 10% of employers monitored employees' use of social media websites. But the research firm predicted that percentage will reach 60% by 2015.

There's some hope that privacy rights have not been completely dismantled: Last summer, the National Labor Relations Board indicated that employers can't prohibit employees from using social media to discuss worker rights. More broadly, the 9th U.S. Circuit Court of Appeals just curbed the power of border agents to seize and search digital devices, power that previously trumped Fourth Amendment protections.

Privacy still has a pulse but the reality is that employees and managers need to consider their words and online posts carefully. The question employers must deal with is how far they should go to collect information about what workers say and do.

San Diego State University professor of management Amy Randel said in a phone interview that employee monitoring really revolves around questions of fairness. "What employees think is inappropriate will be partly determined by what employers have said on the subject," she said.

Randel says that when employers disclose that email messages will be monitored, and when they provide a clear rationale for doing so, employees tend to accept the situation. It's a matter of managing perception and expectation, she says.

Clearly at Harvard, poor administrative communication about diminished privacy during legal inquiries collided with a sense that academics are somehow a more privileged class than mere employees. But there's also the fact that the legal status and the social understanding of email remain are unsettled.

Unfortunately for employers and workers alike, there's no level of surveillance that everyone agrees is appropriate for every situation. Monitoring a worker's location, to assure efficient package delivery for example, fits certain business models. Monitoring employees at Dunkin Donuts reportedly reduced employee theft. Counting keystrokes might be called for in a data entry context. But tracing the location of a company-issued smartphone during a worker's off-hours isn't going to fly. And with so much work happening on non-work devices, the scope of what can be monitored may be too limited to bother.

There are a lot of uncomfortable issues here that have to do with employer-employee power dynamics. In industries where there are plenty of workers who are more or less interchangeable, employers can probably be more heavy-handed about watching the troops. In industries with highly skilled workers, technology for example, a corporate culture that embraces Big Brother is unlikely to help recruitment and retention (unless perhaps it's part of the company culture and modus operandi, like at Apple).

Employers also need to consider whether surveillance is consistent across the company or whether certain levels of employees or management are exempt. Employee monitoring applied unfairly or punitively may cause more problems than it solves.

Employee monitoring may inform management but it won't improve management.

"As more and more work is being done online and companies try to cut costs, some companies are looking at monitoring as a way to replace middle management," said Randel.

There's no right answer here. Every company faces different challenges. Employers and employees should strive to have a relationship based on trust. "There is research evidence that if you trust employees, they return that trust," said Randel.

@Drew - If I use an employer-provided telephone to call my wife should I have an expectation that there's a wiretap on the line? Employers may have legitimate business needs in monitoring any form of communication "for quality assurance" or other purposes. Selective and well-publicized monitoring of particular aspects of the workplace could be legitimate. A blanket license for employers to pry into every communication that goes through their systems is dangerous - a slippery slope that puts in question whether anyone has any right to privacy. The same arguments can be applied to video monitoring in the street. The state has a legitimate concern to protect public safety but does not have a right to conduct unlimited surveillance on citizens in public places. These rights have deteriorated seriously and I agree with the author of the article that the juggernaut against the 4th amendment has to be resisted.

How far are you willing to go on that? I believe it was in one of your family of newsletters which talked about companies expecting their workers to chat up the company on the worker's social media accounts. In my neck of the woods, one of our local television stations did a special report on businesses which were demanding that their workers turn over the passwords to their Facebook and other social media accounts. Where does it stop? If workers are happy to turn over any idea of privacy in the workplace, then that is what they deserve to have happen to them. You seem to have already assumed a surrender on that.

It seems to me that if you're using employer-provided computers and applications, you shouldn't have an expectation of privacy. That said, I think employers are probably better served by taking a light touch with the power they have over employees, and, where feasible, giving employees warning when they're going to actively search mailboxes and other data stores.

There's monitoring and there's monitoring. Thomas is correct that some forms of monitoring won't do a whit to improve management. The irony is that even though most employees realize "privacy" is all relative when it comes to the workplace, they still have the illusion and desire for some. There are tools out there that can strike the right balance between monitoring and privacy, most notably MySammy (http://www.mysammy.com). It gathers just the minimum amount of data necessary to report on employee computer activity, for example, just gathering the website title tag and URL not privy to what exactly is going on on the screen. It also provides employees with the option to stop collecting data if they are on a break or off-work hours and want to use the computer for their own personal use. It's a fine line to walk, but it can be done.

The bosses will go as far as workers will allow them to go. The mouthpieces for the bosses will denigrate people who don't accept the inevitability of worker surveillance, and in doing so sell out workers to the bosses. The wheel continues to spin until the workers decide to stop it from doing so.